WHEN FILM-MAKER Roman Polanski won $50,000 damages from Vanity Fair in a libel case in Britain in July, it was a stark reminder — if any were needed — that our libel laws can have a chilling effect on American writers and publishers as much as on British ones. The Polish director, who lives in France (and who has been a fugitive from the USA since 1977 after he allegedly committed statutory rape), was able to sue a US publication in the High Court in London, and win. It showed that “libel tourism”, where well-known figures choose to sue under England’s stringent and pro-plaintiff libel laws, is alive and well. Yet as Vanity Fair pays Polanski 50 grand, another American writer is refusing to play ball with the English libel courts. Indeed, she has launched a very public fightback against a ruling recently made against her in the High Court, and is pitting America’s First Amendment — which states that there shall be no law “abridging the freedom of speech, or of the press” — against what she refers to as England’s “repugnant” libel laws. It’s a transatlantic spat, and journalists in Britain who value free speech and a free press should seriously consider siding with the Americans against the Brits on this one.
Rachel Ehrenfeld is an Israeli-born American citizen. She is a journalist, author and academic based in New York and has been researching and commenting on terrorism for 20 years. She specialises in tracing the money behind terrorist organisations and has rattled more than a few cages with her expos￩ of where the cold hard cash for terrorist acts comes from. After the events of 11 September 2001 (which she witnessed from her flat in midtown New York), Ehrenfeld wrote a book titled Funding Evil: How Terrorism Is Financed, and How to Stop It, in which she made allegations about a Saudi billionaire and his sons. After publication, Ehrenfeld started to receive demands for retractions from British lawyers representing the billionaire. She refused, so in 2004 she was sued in London.
On 3 May this year, Mr Justice Eady (the judge who ruled in the Polanski case) ordered that Ehrenfeld and Bonus Books should pay both the father and his sons $10,000 each — a total of $30,000 — as well as $30,000 in costs, because statements made in the book were “defamatory of the claimants, and false”. Ehrenfeld did not turn up to the High Court because she says it is “very difficult and expensive to defend oneself” in the English libel courts — though she points out that everything in her book is carefully referenced. “Half of the book is references,” she says. And she refuses to recognise the ruling made against her. Even now she will not discuss the details of the case, because “I do not recognise the court’s jurisdiction over me”. She says: “I am an American citizen and he is a Saudi, and my book was published in America. Yet he sues me in London. If he has any qualms with me, he should come and sue me in the United States.”
Ehrenfeld points out that her book was not published in Britain, and was not even available to buy in British bookshops. Yet she was sued in London on the basis that 26 copies of her book were bought by individuals based in Britain via internet booksellers. The first chapter of the book was also published on the web, and was apparently accessed by numerous Britons. “It’s ridiculous,” says Ehrenfeld. “This is an American book by an American citizen. I see no reason for my being sued in England. Except, of course, that English libel laws are favourable to plaintiffs.”
In June, Ehrenfeld launched a counterclaim against the London ruling in a court in New York. She applied to the United States District Court for the Southern District of New York for a declaratory judgment saying that what she wrote was not libellous under American law, and that Mr Justice Eady’s order was unenforceable in the United States because it was contrary to the American Constitution’s protection of freedom of speech. The memorandum filed by Ehrenfeld’s lawyers in the District Court in New York, says that writers should be free “to ferret out and publish the facts without fear of expensive lawsuits and huge judgments in foreign countries whose defamation laws and commitment to freedom of _expression and public discourse are ‘repugnant’ and antithetical and ‘contrary’ to our fundamental public policy”. That’s England they’re talking about, when they refer to “foreign countries” that have “repugnant” laws which are “antithetical” to free speech. It has become fashionable in Britain to look down one’s nose at America under President Bush — “Bush country”, where people are apparently a bit thick and gung-ho — yet many in America look down their noses at our backward attitudes to freedom of speech and freedom of the press. The use of the word “repugnant” comes from an American court case from 1997.
The US Maryland State Appeals Court had been asked to enforce an English libel ruling against an American citizen, as American courts routinely do. But in this instance the court refused, arguing that “the principles of English libel law fail to measure up to the basic human rights standards and are repugnant to public policy and the constitutional ideal of free speech”. Ehrenfeld points out that had she been sued in America, “the case would probably have been thrown out of court”. The law of defamation in America is a far more progressive affair than it is in London. Under English libel law, the claimant does not need to prove that the allegedly defamatory statement was false, only that it was potentially damaging to his or her reputation; under American law, claimants do have to prove falsity. And in America, following the landmark ruling of New York Times v Sullivan in 1964, there is a “public figure defence”, which makes it very difficult for people in the public eye to sue for libel. In order to succeed, claimants would have to show not only that the allegations were false, but that they were made maliciously or with reckless disregard for truth. “Your libel laws have a pernicious chilling effect,” says Ehrenfeld. “I know of two publishers who have cancelled books that cover similar issues to mine — books they had already commissioned and bought — because they don’t want to get involved in lawsuits.” She hopes her counterclaim in New York will set a precedent that will stop English libel rulings being enforced against American citizens. “We don’t want the English legal system imposed on us anymore,” she says. Brendan O’Neill is deputy editor of spiked (http://www.spiked-online.com)